Importance of Ensuring Defendants are Properly Served
While it is always crucial to properly serve a defendant in any case, we will touch on the importance in New York specifically. Under New York law, a plaintiff is required to properly and promptly (within 120 days of the filing) serve both the foreclosure complaint and summons to the defendant. Strict guidelines are in place to ensure proper delivery. Should any of the guidelines not be met, the foreclosure case could be thrown out of court, resulting in time and money lost to have the case refiled. Here we’ll discuss a few situations we recently found where the lenders’ initial foreclosure cases were unsuccessful for failing to adhere to the guidelines.
In this first example, the lender filed a foreclosure case against the borrower on 03/21/2008 and even got as far as having a Judgment of Foreclosure and Sale issued on 11/13/2008. The homeowner filed a petition to cancel any sale of the property and for the entire case to be immediately dismissed as she claimed she had not been properly served. In her request, she cited that pursuant to New York Civil Practice Law and Rules (CPLR) 306-b, the service of process on a defendant must be effectuated within 120 days of the commencement of an action. The homeowner alleged that the plaintiff served “a similar house in another neighborhood,” and in fact had never notified her of the impending proceedings. “If service of process is not made within the 120-day period after the commencement of the Action, an unserved Defendant can move for the dismissal, without prejudice, or the court could extend Plaintiff’s time to serve a Defendant upon good cause shown or in the interest of justice.” Leader, 97 N.Y.2d at 101 (citing CPLR 306-b). Given the evidence, the case was dismissed.
The lender had to file another case against the defaulting borrower but was met with another blockade. Once again, the homeowner filed another petition to dismiss the newest foreclosure case pursuant to CPLR 3211, 5015 and 3215 alleging that she still was not properly served.
In this first example, the lender filed a foreclosure case against the borrower on 03/21/2008 and even got as far as having a Judgment of Foreclosure and Sale issued on 11/13/2008. The homeowner filed a petition to cancel any sale of the property and for the entire case to be immediately dismissed as she claimed she had not been properly served. In her request, she cited that pursuant to New York Civil Practice Law and Rules (CPLR) 306-b, the service of process on a defendant must be effectuated within 120 days of the commencement of an action. The homeowner alleged that the plaintiff served “a similar house in another neighborhood,” and in fact had never notified her of the impending proceedings. “If service of process is not made within the 120-day period after the commencement of the Action, an unserved Defendant can move for the dismissal, without prejudice, or the court could extend Plaintiff’s time to serve a Defendant upon good cause shown or in the interest of justice.” Leader, 97 N.Y.2d at 101 (citing CPLR 306-b). Given the evidence, the case was dismissed.
The lender had to file another case against the defaulting borrower but was met with another blockade. Once again, the homeowner filed another petition to dismiss the newest foreclosure case pursuant to CPLR 3211, 5015 and 3215 alleging that she still was not properly served.
This time, the correct address was visited – multiple times, in fact – but “actual service of process on a natural person” was not made. “Nail and mail,” or affixing the papers to the door of the premises, does not comply with the strict due diligence requirement and as such, this case also got dismissed. The plaintiff once again had to file a new case which at this time is still in litigation. Third time’s the charm!
In this next example, the homeowner files a motion to contest the lender’s foreclosure case for multiple reasons. She confirms that she has never received a copy of the summons which as we’ve now learned is one of the strict guidelines. She alleges that she never received a 90-day notice from the plaintiff which is also required. Lastly, she notes that the lender claims the default occurred in 2006 and the foreclosure action was initiated 12 years later in 2018 while the statute of limitation to foreclosure in New York is six years. The court indeed found in the homeowner’s favor and dismissed the case due to the lender’s failure to properly serve the summons, failure to serve the 90-day notice and the fact that the action was barred by the six year statute of limitation.
In this next example, the homeowner files a motion to contest the lender’s foreclosure case for multiple reasons. She confirms that she has never received a copy of the summons which as we’ve now learned is one of the strict guidelines. She alleges that she never received a 90-day notice from the plaintiff which is also required. Lastly, she notes that the lender claims the default occurred in 2006 and the foreclosure action was initiated 12 years later in 2018 while the statute of limitation to foreclosure in New York is six years. The court indeed found in the homeowner’s favor and dismissed the case due to the lender’s failure to properly serve the summons, failure to serve the 90-day notice and the fact that the action was barred by the six year statute of limitation.
